VAGUE EASEMENT? LOCATION MUST BE SPECIFIED

WHAT IS AN EXPRESS EASEMENT?

An easement is a non-possessory interest in another’s property that authorizes the holder to use that property for a particular purpose. Marcus Cable Assocs., L.P. v. Krohn, 90 S.W.3d 697, 700 (Tex.2002).Notably, an easement does not convey the property itself. Lakeside Launches, Inc. v. Austin Yacht Club, Inc., 750 S.W.2d 868, 871 (Tex.App.-Austin 1988, writ denied).

Easements may be express or implied. Implied easements are defined by the circumstances that create the implication. Ulbricht v. Friedsam, 159 Tex. 607, 325 S.W.2d 669, 677 (1959) (finding an implied easement to use lake water for cattle as they were located upland and without any water source). Express easements, however, must comply with the Statute of Frauds, which requires a description of the easement’s location. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983).

In determining whether an easement has been granted expressly, Texas courts look to the same rules of construction applicable to deeds. Callejo v. City of Garland, 647*647 583 S.W.2d 925, 927 (Tex.App.-Dallas 1979, writ ref’d n.r.e.). Generally, a written instrument is required to validly convey an estate in land. See Tex. Prop.Code Ann. § 5.021 (Vernon 2003). Subject to some exceptions, a writing also is required to create an easement. Drye, 364 S.W.2d at 203.

TEXAS STATUTE OF FRAUDS

An easement is an interest in land which is subject to the Statute of Frauds. Anderson v. Tall Timbers Corporation, 378 S.W.2d 16, 24 (Tex.1964).

Express easements must comply with the Statute of Frauds, which requires a description of the easement’s location. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex.1983).

It is well settled that in order for a conveyance or contract of sale to meet the requirements of the Statute of Frauds, it must, insofar as the property description is concerned, furnish within itself or by reference to other identified writings then in existence, the means or data by which the particular land to be conveyed may be identified with specific certainty. Jones v. Kelley, 614 S.W.2d 95, 99 (Tex.1981); Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex.1972); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, 152 (1945).

Although no special form or particular words need to be employed, because an easement is an interest in land, the grant should have the same essential characteristics as a deed to real estate. See Hubert v. Davis, 170 S.W.3d 706, 710-11 (Tex. App.-Tyler 2005, no pet.); see also Wall v. Lower CO River Auth., 536 S.W.2d 688, 691 (Tex. Civ. App.-Austin 1976, writ ref’d n.r.e.) (scope of easement determined by same rules applicable to deeds).

EASEMENT LOCATION MUST BE DESCRIBED WITH SPECIFICITY

An easement created by an express grant must be described with such certainty that a surveyor could go upon the land and locate the easement from the description. Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983).The purpose of a description in a written conveyance is not to identify the land, but to afford a means of identification. Jones v. Kelley, 614 S.W.2d 95, 99-100 (Tex.1981).

If the description is inadequate or if there is no description, there can be no easement. Vrabel v. Donohoe Creek Watershed Auth., 545 S.W.2d 53, 54 (Tex. Civ. App.-Austin 1976, no writ).However, if enough appears in the description so that a person familiar with the area can locate the premises with reasonable certainty, it is sufficient to satisfy the Statute of Frauds. Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 248-49 (1955).

WHEN EASEMENT LOCATION IS NOT SPECIFIED

When an express easement is described in general terms without specifying its location, the right to select the location usually belongs to the grantor. Holmstrom v. Lee, 26 S.W.3d 526, 533 (Tex.App.-Austin 2000, no pet.). But this right must be exercised in a reasonable manner, and if the grantor of an easement fails to establish its location, the grantee may do so. Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex.App.-El Paso 1993, no writ). The grantee’s use of the easement, with the consent or acquiescence of the grantor, is sufficient to establish the easement’s location. See Adams, 975 S.W.2d at 428; Elliott v. Elliott, 597 S.W.2d 795, 802 (Tex.Civ.App.-Corpus Christi 1980, no writ).

EXCEPTIONS – WHEN VAGUE EASEMENTS MAY BE ENFORCEABLE

The fact that an easement clause is vague, indefinite, or uncertain does not authorize a court to completely ignore the valuable right thereby granted. See Adams v. Norsworthy Ranch, 975 S.W.2d 424, 428 (Tex.App.-Austin 1998, no pet.). With express easements,  an exact designation of location is unnecessary, as long as the tract of land that will be burdened by the easement is sufficiently identified. See Jones v. Fuller, 856 S.W.2d 597, 602 (Tex.App.-Waco 1993, no writ).

Certain un-located easements will be valid, such as where the instrument merely permits the construction of some facility or the laying of a line on designated property. See Armstrong v. Skelly Oil Co., 81 S.W.2d 735, 736 (Tex. Civ. App.-Amarillo 1935, writ ref.).

An express grant of a right-of-way set out in general terms without specifying the exact place for its location can be made certain by the act of the grantee in selecting the easement. Elliott v. Elliott, 597 S.W.2d 795, 802 (Tex. Civ. App.-Corpus Christi 1980, no writ). Once selected, the grantee’s easement rights become fixed and certain. Id. (citing Houston Pipe Line Co. v. Dwyer, 374 S.W.2d 662, 666 (Tex. 1964)).